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The end of DACA and how it will affect employers

By Raluca Vais-Ottosen

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On Sept. 5, 2017, the Trump administration announced that it was phasing out the Deferred Action for Childhood Arrivals (DACA). Ending DACA will affect not just the young people covered under the program, but also thousands of U.S. companies nationwide.

DHS reports that approximately 800,000 people have received DACA nationwide. Over 8,100 of those individuals reside in Wisconsin, and over 6,600 such Wisconsinites have already renewed or applied to renew their DACA as of March 2017.

What is DACA?

Former President Obama instituted DACA in 2012 by executive order to protect certain undocumented youth. The program provides a two-year Employment Authorization Document card (EAD) and it shields beneficiaries from deportation during its validity. Beneficiaries have been able to renew their DACA/EAD benefits for additional two-year periods while the program has been in place.

DACA is not permanent residence or citizenship and it does not, by itself, make beneficiaries eligible for any other immigration benefit, whether temporary or permanent.

Who could get DACA?

DACA applicants had to meet all of the following criteria:

Came to U.S. before turning 16;

Lived in U.S. continuously since at least June 15, 2007;

Were physically present in U.S. on June 15, 2012;

Had no legal immigration status as of June 15, 2012;

Were under the age of 31 as of June 15, 2012;

Obtained a U.S. high school diploma or GED certificate, or were in the process of obtaining one, or are honorably discharged veterans of the U.S. Coast Guard or Armed Forces;

Did not commit any felonies, or one significant misdemeanor, or three minor misdemeanors; and

Did not pose a risk to public safety or national security.

How will ending DACA affect U.S. companies?

Ending DACA will have a significant impact on thousands of employers nationwide. Most DACA beneficiaries are not eligible to obtain work authorization otherwise, so their employment will have to be terminated once their DACA ends. Consequently, U.S. companies will lose hundreds of thousands of productive employees, forcing employers to incur turnover costs such as advertising, recruiting, training, and certification costs.

USCIS states that, as of Aug. 20, 2017, the agency already had 106,341 DACA applications pending. Another 201,678 DACA/EADs will expire throughout the remainder of 2017. USCIS reports that 275,344 individuals will have their DACA/EADs expire in 2018, and another 321,920 DACAs will expire in 2019.

Some of these individuals are still high school students, but the majority of DACA holders are valuable employees of the companies they serve. Many DACA holders have graduated from college and some hold Master’s or Ph.D. degrees. DACA beneficiaries contribute to virtually all industries, including technology, medicine, manufacturing, and education. Terminating their employment authorization affects not just them, but also their employers and their employers’ clients, patrons, students, or patients.

How does an employer know that an employee’s work authorization expires?

Employers cannot ask employees about their immigration status. But the law requires U.S. employers to verify the identity and employment eligibility of all new hires, regardless of citizenship, nationality, or ethnicity. This is done through the I-9 Employment Eligibility Verification and, in some cases, E-Verify.

When an employee’s U.S. employment authorization is temporary, the law requires employers to re-verify that employee’s right to work upon expiration. The expiration date must be noted on form I-9 at the time of completing the initial I-9.

Employers should have mechanisms to track these expiration dates. If the employer is enrolled in E-Verify, the E-Verify system may issue a reminder that the EAD is about to expire. However, employers should not rely entirely on E-Verify reminders because they are not generated in all cases. Employers cannot continue to employ someone beyond the expiration date of the employment authorization, unless they show evidence of continued authorization.